Does Advertising Agency Need Copyright?

There is no doubt that the last thing an advertising agency want to see is their idea being stolen by the client in a pitch and earn nothing after crazy working for weeks or even months. A creative idea is the core competitiveness of an agency. However, it is also the most vulnerable part since you can’t own a copyright before you execute it in a physical form. Copyright, in its current form, applies limited protection to the expression of the work (Gallagher,2013)

Temporarily, how people deal with this problem is nothing special. Just like Bodhisatwa Dasgupta, Creative Director at Grey Worldwide suggested, “What you should be doing is making clients sign an NDA or charging a pitch fee.” Of course, these two measures are the most straightforward way to decrease the risk. From my own opinion, I don’t like the rule of this industry that agencies win a business by pitching. Because agencies are selling service not product, when you work you must be paid for. Just like you go to the barber shop, you must pay even though you are not perfectly satisfied with the haircut. The only thing you can do is to choose another barber next time. However, at the same time, we cannot avoid facing the following questions like “Does NDA and a pitch fee narrow your chances of winning valuable accounts? Are clients willing to play ball when there are agencies ready to pitch for free?” For those well-known global agencies, they may not care too much and also take these two measures as the way to filter for a better client.  But for a larger number of small and medium-sized agencies, they don’t really want to scare away anyone of their potential clients at the very beginning. They have to take the risk, and sometimes they will even become the accessory of idea theft——they help to execute the stolen idea in a lower price.

So, do we really need something like copyright to protect agencies’ idea legally so that advertising creativity can truly thrive? My answer is no.

First of all, the current copyright system is more beneficial for cultural conglomerates than real creators (Smiers, 2007). Gallagher(2013) indicated that it’s effectively discouraging creativity and innovation by punishing artists for using the culture around them to create new cultural works. This situation will also apply in advertising domain if they have copyright. Especially when different agencies are working for the same client on the same business strategy, similar ideas are unavoidable.

Moreover, we should clarify the role of advertising agencies. When you’re selling service, the most important thing is  what you can do for your clients. Just like the hotel industry,  hotel enterprise never accuses people of imitating the elegant interior design to arrange their own apartment. Because a hotel is what you need when you cannot go home. Likewise, the value of an agency is not only carrying out a professional idea but also implementing it perfectly, extending it to every aspect and dealing with all the following problems.  Just like Sharon Toerek, an intellectual property and marketing law attorney said, “The marketers have the budgets, and, at the end of the day, creative agencies’ currency is their ability to monetize their creative product.” Today, advertising is no longer as simple as producing a series of TVC or print material. With a good original idea, an advertising event still needs various efforts to become an influential campaign. This process is where  the professional agency comes in and showcase their value. From a conceptual idea to a commercial success, adjustments and improvements are indispensable. And that’s what clients themselves not capable of.

Agencies don’t manufacture idea, they produce successful communication and maximize client’s benefit. Clients don’t hire idea, they hire people. Especially those high-class enterprises, their decision-maker are smart enough to understand that advertising communicating is not a one-off activity. They also understand the importance and benefit to establish a long-term partnership with a good team. I believe they will not be so foolish to infringe upon a good agency for only one creative idea. Because it is obvious that when an agency can come up with a great idea for you, they can also provide the same thing to your competitors, sometimes may even better. Advertising is an ongoing business activity, saving the budget for only one-off execution but risk a fiercer longer-term competition would be a really unwise decision. No enterprise will abandon the advertising effect just for a cheaper price.

Therefore, from my own perspective, agencies should not care too much about idea stolen by clients. Because when you are good enough, clients will have no choice but only ask you to finish the work for them. Moreover, advertising agencies are supposed to be the expert of convincing and communicating. When you fail to make your client be willing to pay for your service, you should have an introspection.


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